The Issue The issue for determination is whether Ferman Barrett committed unprofessional conduct and departed from minimal standards of acceptable nursing practice, in violation of Section 464.018(1)(f), Florida Statutes by abandoning his shift.
Findings Of Fact At all times material Ferman Barrett was licensed as a practical nurse, with State of Florida license number PN0628671. He was originally licensed by examination on December 14, 1981, and has regularly renewed' his license since then. Mr. Barrett was employed as a practical nurse at Westlake Hospital, in Longwood, Florida, from July 1987 until January 1988. Westlake is a psychiatric hospital serving individuals of all ages with complex psychiatric problems. On January 2, 1988, Mr. Barrett was assigned to the children's unit, consisting of 12-13 children with conduct disorders. He was given charge of three patients whose medication he was to maintain and whose activities he was to supervise. The children could have been combative and [illegible]. Barrett was scheduled to work a double shift on January 2, 1988 from 7:00 A.M. until 3:00 P.M., and from 3:00 P.M. until 11:00 P.M. At approximately 8:05 A.M., Barrett told Denise McCall, the charge nurse for that shift, that he "couldn't take it anymore" and was leaving. She asked him to wait until she could contact a supervisor to properly relieve him, but he left without permission. He was subsequently discharged by the hospital for abandoning his job. Diana Eftoda was qualified as an expert in the practice of nursing. She has been licensed as a registered nurse in Florida since 1978. She has 20 years experience in nursing, including beginning her nursing career as a licensed practical nurse. She has administered nursing staff of an entire hospital and has served in a policy making position with the Board of Nursing. Mrs. Eftoda established that abandonment of a shift without notice or permission is a breach of professional responsibility and constitutes misconduct. Ferman Barrett's action jeopardized the safety and well being of his patients and his license should be disciplined.
Findings Of Fact Respondent is licensed by Petitioner as a licensed practical nurse, License Number 21725-1 and was so licensed during the years 1974 and 1975. Respondent was first employed by Okaloosa Memorial Hospital Crestview Florida in 1965 as a nurse's aide and remained in this capacity until 1968 when she took a leave of absence to attend classes to obtain her license as & practical nurse. She was employed as a licensed practical nurse at the hospital from September 1969 until August 27, 1975. Her primary duty as an LPN was medication nurse on the 7-3 shift. (Respondent's Composite Exhibit 1) On September 27, 1974, Respondent signed out for 100 mg. of "meperidine inj" at 2:15 P.M. on a hospital Narcotic Administration Record for that drug for Station Number 1. The record reflects that the drug was drawn from hospital stock to be administered to patient Tommy Davis. Demerol is the trade name for meperidine and it is a controlled narcotic analgesic drug. Although the Nurses Bedside Record for the patient for that day should have reflected administration of the drug to the patient by the initials of the Respondent, the record does not show such an entry by her or anyone else. Hospital practice also requires that administration of medication be shown on the nurses progress notes for the patient, but there is no record in such notes for the date in question regarding patient Davis having received the medication in question. (Testimony of Bronson, Mitchell, Petitioner's Exhibits 2, 5). A hospital Narcotic Administration Record for "meperidine, 100 mg., inj." for Station Number 1 reflects that on February 8, 1975 at 2:00 P.M. Respondent withdrew 100 mg. of the drug for patient Roy Bringhurst. However, neither the Nurses Bedside Record nor the nurses progress notes reflect that the drug was administered to the patient by Respondent or anyone else at that time. (Testimony of Bronson, Mitchell; Petitioner's Exhibits 3, 6). A hospital Narcotic Administration Record for "meperidine 75 mg. inj." for Station Number 1 shows that on February 23, 1975, at 1:00 P.M., Respondent signed out for 75 mg. of the drug for patient Mary Corbin. Neither the Nurses Bedside Record nor nurses progress notes for the patient reflect that the drug was administered at that time by Respondent or anyone else. (Testimony of Bronson, Mitchell; Petitioner's Exhibits 1, 4). In early August, 1975, personnel of the hospital pharmacy brought to the attention of the hospital administrator the fact that a large quantity of the drug, Thorazine, was being used at Station 1 in the hospital. Medical records reflected that the drug had been used only four times during a five day period when ten vials had been issued. Each vial would provide about five to ten normal injections. It was further noted that after Respondent went on a ten day leave of absence, no Thorazine was used during that period at Station 1. When Respondent returned on August 19th, she requisitioned two bottles of Thorazine for Station Number 1 from the pharmacy and these bottles were given to her by pharmacy personnel on that date. During Respondent's noon hour absence, the hospital Administrator and Director of Nursing went to the medication room of Station 1 and observed a partially full bottle of Thorazine which had been there for some time and had been issued to the station on August 8th. The bottle also had been observed in the medication room by the Director of Nursing at 6:30 A.M. on August 19th before Respondent started her shift. At that time, it also was noted that the trash can in the medicine room was empty. During the noon hour investigation, it was discovered that an empty bottle of Thorazine was in the trash can and another empty bottle was found in general trash outside the hospital. When Respondent returned from lunch, she was asked to step into the medicine room and there the Administrator asked her what had happened to the two bottles of thorazine. Respondent stated that she had administered one injection to patient Barnes and another to patient Nelson and that a third injection had been given to her son. She was unable to account for the remaining amount that had been drawn earlier that day. She consented to the Administrator examining her handbag and therein was found twelve Thorazine tablets in a medicine cup. When asked about them, Respondent admitted that they came from hospital stock supplies and that she had planned to take them home for use by her husband who suffered from heart trouble. Later that day, patient Nelson told the Director of Nursing that he had not received an injection since early in the morning of August 19th and patient Barnes denied having received any injection of the drug that day. Subsequent to August 19, Respondent provided a written statement to hospital authorities in which she said that she gave Thorazine intramuscularly rather than orally to patient Nelson by mistake and that she gave a Thorazine injection to patient Barnes due to her negligence in not ascertaining that such medication had not been ordered for him. Contrary to the statement she had made concerning her son, in fact, the shot which she administered to him at the hospital on August 19 was penicillin which he had brought from home to the hospital on that day. He was then suffering from a cold. The penicillin had been purchased at a pharmacy by Respondent in June, 1975, for possible future use. (Testimony of Mitchell, Howard, Helms, Carl Godwin, Petitioner's Composite Exhibit 7, Petitioner's Exhibit 8, Respondent's Exhibit 2). Respondent testified as a witness and admitted taking the 12 Thorazine tablets from hospital supplies on August 19, 1975, because her husband was not feeling well and she thought the medication would help him. She conceded that it was wrong for her to take the tablets and offered no other excuse for her action. Although she admitted requisitioning the two bottles of Thorazine on August 19th, she testified that these were not delivered to her but that she saw them in a basket in the medicine room about 10:00 A.M. She further testified that it was entirely possible that she could have made the charting errors, as alleged, due to the fact that frequently she had a large number of patients asking for medication at the same time and she was not able to chart such medication until after her shift had finished. At such times she might have forgotten a particular dosage administered to a patient. She stated that she had ordered the two bottles of Thorazine on August 19th because the Director of Nursing had previously required that two bottles be in stock at Station Number 1 at all times. (Testimony of Respondent). In 1975, it was not uncommon for the hospital's nurses to chart their medication at the end of their shift rather than at the time of administration. Although hospital employees were routinely provided such medications as aspirin or antacid from hospital supplies, there was no authorization for them to take or receive other drugs without a doctor's orders. Although several witnesses testified that there were rather loose practices in the hospital regarding employees receiving medication, no specific instances were cited to establish that taking drugs without permission was the norm. (Testimony of Howard, McLaughlin, Downes, Deaton). In view of the foregoing findings the, following further findings are made: On three separate occasions in 1974 and 1975, while on duty as a medication nurse at the Okaloosa Memorial Hospital, Crestview, Florida, Respondent drew quantities of meperidine (demerol) from hospital supplies for specified patients and failed to chart the administration of such drugs in patient records. On August 19, 1975, Respondent wrongfully took twelve Thorazine tablets from Okaloosa Memorial Hospital supplies for personal use. On August 19, 1975, Respondent received two bottles of Thorazine from the Okaloosa Memorial Hospital pharmacy ostensibly for patient use, but wrongfully disposed of the same in an unknown manner. Respondent enjoys a good reputation as a licensed practical nurse. In fact, the hospital Administrator is of the opinion that she was the best medication nurse in the hospital before she became ill in 1974. Her coworkers attest to her loyalty, honesty, and conscientious work. She enjoys a good reputation in her community where she has lived for a lifetime, and a number of her former patients submitted statements concerning her excellent work while under her care. She has been employed at the Crestview Nursing Convalescent Home, Crestview, Florida, since September 30, 1975 and has performed her duties there in a very commendable manner. Her employer wishes to retain her as a licensed practical nurse due to the fact that she is particularly qualified to handle elderly patients and competent nurses for this type of work are difficult to find. (Testimony of Howard, McLaughlin, Sanford, Downes, Deaton, Baldwin, Respondent's Composite Exhibit 1).
Recommendation That Respondent's license as a licensed practical nurse be suspended for a period of six months, but that the enforcement thereof be suspended for a like period during which time Respondent should be placed on probation. DONE and ENTERED this 24th day of January, 1977, in Tallahassee Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1130 American Heritage Building Jacksonville Florida 32202 Ernest L. Cotton & Woodburn S. Wesley, Jr., Esquires 88 Eglin Parkway Fort Walton Beach Florida
The Issue Whether the Respondent committed the offenses set forth in the Administrative Complaint and , if so, what disciplinary action should be taken.
Findings Of Fact Respondent, Dalia V. Gonzalez, was at all times material hereto, licensed as a registered nurse in the State of Florida, having been issued license number RN 88664-2. On August 16, 1988, Respondent was employed as a charge nurse for the skilled unit portion of a floor at Coral Gables Convalescent Center. The remaining portion of the floor was a long term intermediate care unit with a licensed practical nurse, Ms. Jane Reilly Perkins, serving as charge nurse for said unit. During the change of shifts and between 6:30 a.m. and 7:00 a.m. on August 16, 1988, a threatening argument, over the number of personnel assigned to each portion of the floor, arose between Respondent and Ms. Reilly who was accompanied by another licensed practical nurse. Ms. Reilly is a female of physically imposing stature; therefore, Respondent, reasonably fearing her safety, locked herself in her office and called her supervisor to ask for assistance. Respondent remained locked in her office for approximately two hours awaiting the arrival of her supervisor. During this time, Respondent was in constant contact with the other medical personnel on her floor. Although she was the only registered nurse present, her personal service as a registered nurse was not required at the time nor was she prohibited from giving it had the necessity arisen. When Respondent's supervisor, a registered nurse, arrived, they discussed the situation with Ms. Reilly. During this discussion, Respondent gave her first notice of intent to leave her position. After being informed that if she left, she would lose her position at Coral Gables Convalescent Center, Respondent handed her keys to her supervisor and left the facility not completing her assigned shift. While Respondent was available to her patients, although locked in her office during her shift, she did leave her nursing assignment without notifying her supervisor of her intent to leave within sufficient time to allow substitute arrangements to be made. Respondent's notice was improper Consequently, Respondent acted with unprofessional conduct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED the a final order be entered reprimanding Petitioner. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19 day of June 1989. JANE C. HAYMAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division Administrative Hearings this 19 day of June 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-325 Petitioner's proposed findings of fact are addressed as follows: Addressed in paragraph 1. Addressed in paragraph 1. Addressed in paragraph 2. Addressed in paragraph 2. Addressed in paragraph 3. Not necessary to result reached. Addressed in paragraph 2. Addressed in paragraph 3. Addressed in paragraph 3. To the extent supported by competent proof, addressed in paragraph 3. Addressed in paragraph 4. Subordinate to the result reached. Subordinate to the result reached. Addressed in paragraph 6. Not supported by competent and substantial evidence. Addressed in paragraph 5. Not supported by competent and substantial evidence. Not supported by competent and substantial evidence. Addressed in paragraph 6. Addressed in paragraph 6. Addressed in paragraph 5. Not supported by competent and substantial evidence. Not supported by competent and substantial evidence. Not supported by competent and substantial evidence. Addressed in paragraph 6. COPIES FURNISHED: Lisa M. Basset, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729 Santiago Pellegrini, Esquire 1570 Northwest Fourteenth Street Miami, Florida 33125 Judie Ritter Executive Director Board of Nursing 504 Daniel Building 111 East Coastline Drive Jacksonville, Florida 32201 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729 =================================================================
Findings Of Fact Based on the entire record compiled herein, including the arguments of counsel, the briefs and my observation of the demeanor of the witnesses while testifying, the following relevant facts are found. During 1976 and 1977, Respondent cited Krestview Nursing Home (Krestview or Petitioner) for alleged noncompliance with Federal Regulations 20 CFR Part 405.1134(e), herein sometimes referred to as "1134(e)". Krestview's representatives Michael Weiner and Gerald Keller requested a waiver and a hearing on the issuance of a waiver as it relates to Section 1134(e) Krestview is an existing nursing home facility in Dade County, Florida, which was constructed approximately 1956. Since its construction, it has at all times been a public facility and a "provider" receiving compensation from public funds. When constructed and until approximately 1970, the requirement for square footage per bed in multi-bed rooms for skilled nursing facilities (SNF's) as 60 square feet per bed. At some point in the 1970's both the U.S. Department of Health, Education and Welfare (HEW) and the State of Florida adopted new legislation and/or regulations requiring new SNF's to provide 80 square feet per patient bed. Chapter 400, Florida Statutes, and Chapter 10D-29, Florida Administrative Code, and Chapter 45 CFR 405.1101(j) of the Federal Rules and Regulations. At the outset of the hearing, the parties stipulated that: (1) Krestview was acknowledged to be an existing facility within the meaning both of the Florida Statutes pertaining thereto and within the meaning of the Federal Regulations; (2) Krestview acknowledged that it did not have 80 square feet per patient bed in multi-bed rooms; (3) Krestview was a skilled nursing facility within the meaning of Title XIX and had been certified by Respondent to so participate without conditions or contingencies in its new agreement which by its terms is effective November, 1977, through November, 1978; (4) Krestview and the Respondent executed a new annual provider agreement without conditions or contingencies on or about November 1, 1977, which, of course, was in effect at the time of the hearing; and (5) Respondent is single State Agency authorized to administer the applicable HEW programs in the State of Florida. As stated, the parties stipulated that many of the bedrooms at Krestview Nursing Home do not meet the 80 square foot per bed minimum requirement. An examination of the documentary evidence reveals that of approximately 90 rooms, 84 do not meet the minimum square foot per bed requirement as set forth and contained in 1134(e) . However, there is a proviso in Section 1134(e) which provides in pertinent part that "... the secretary (or in the case of a facility participating as a skilled nursing facility under Title XIX only, the survey agency--see Section 249.33(a)(1)(i) of Title XIX--may permit variations in individual cases where the facility demonstrates in writing that such variations are in accordance with particular needs of the patients and will not adversely affect their health and safety." Variances under the foregoing rule were granted the Petitioner and other similar nursing facilities prior to January 30, 1976, when an interpretation of the Standards was addressed by the Director of the Office of Long-Term Care, Standards Enforcement, and sent to the office of the Regional Director (OLTCSE). All-State Letter No. 2-76. The subject of the communication was the development of waiver and variance criteria: CFR 405.1134, Standards (a), (c) and (e). The interpretation stemming from the All-State's letter seemed to indicate that a variance can only be granted for either the length of the agreement or for a shorter period, depending on the "needs of the affected patients". (See pipes letter dated January 30, 1976, and introduced as Respondent's Exhibit No. 1.) Another part of the same section, 405, which provides for the conditions of participation in Title XIX funding provides: "The skilled nursing facility is in com- pliance with Federal, State and Local laws and regulations. Standard: Licensure. The facility, in any state in which state or applicable local law provides for licensing of facilities of this nature." "(3) Except that a facility which formerly met fully such licensure requirements, but is currently determined not to meet fully all such requirements, may be recognized for a period specified by the state standard-setting authority." Without question, Krestview met fully licensure requirements in that when constructed, the facility met the existing requirement of 60 square feet or more per patient bed. Thus, by reading Section 405.1120 in para materia with Section 1134(e), it appears that the Respondent can grant an indefinite or definite term of waiver. Such a conclusion also appears to be in keeping with the mandate of Chapter 400.23(2)(a), Florida Statutes, and would dictate a certification by Respondent for Krestview and other similarly situated facilities. As an aside, it was noted that similar interpretations of the same provision (1134(e)) by other HEW regional directors have extended waivers to SNF's which met the existing requirement when constructed and otherwise met pertinent state certification regulations. The interpretation set forth in Respondent's Exhibit No. 1 also contained significant deviations in language from the actual regulation. For example, the regulation states, "...in accordance with the particular needs of the patients." while the Pipes letter states, "... in the best interest of the individual patients in that room. " At another point, Section 1134 reads, "...may permit variations. " while the pipes letter states, "...a variance will have to be reapproved at the beginning of each new agreement cycle." Given this conflict and an interpretation of Sections 405.1120 and 1134(e), a more reasonable conclusion appears to be that the Respondent, despite its position to the contrary, is authorized to grant waivers to existing facilities such as Krestview and based on the requests submitted, should have granted such waivers provided a written demonstration is provided to establish that such waivers are in accord with the patient needs and no adverse health and safety affects will result. For all of these reasons, including the fact that the new provider agreement executed by the parties herein was issued without conditions and is effective through October, 1978, I shall recommend that the Respondent withdraw its Notice of Citation to Krestview alleging noncompliance with Federal Regulations 20 CFR Part 405.1134(e).
Recommendation Based on the foregoing findings of fact and conclusions, I hereby recommend that the Respondent withdraw its Notice of Noncompliance issued to Krestview Nursing Home respecting Federal Regulations 20 CFR Part 405.1134(e). In keeping with this recommendation, it is further recommended that the Respondent reexamine the waiver request and allow the Petitioner a reasonable length of time to document its waiver request. RECOMMENDED this 14th day of September, 1978, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Joseph D. Dowless, Jr., Director Office of Licensure and Certification Department of Health and Rehabilitative Services Post Office Box 210 Jacksonville, Florida 32201 Leonard Helfand, Esquire 2445 West Flagler Street Miami, Florida 33155 Michael J. Weiner Krestview Nursing Home 775 Northwest 13th Avenue Miami, Florida 33125 Stuart Huff, Esquire 1400 First Federal Building One Southeast Third Avenue Miami, Florida 33131 Gerald D. Keller, President B & R Investments, Inc. d/b/a Krestview Nursing Home 775 Northwest 13th Avenue Miami, Florida 33125 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES KRESTVIEW NURSING HOME, Petitioner, vs. CASE NO. 77-1603 STATE OF FLORIDA, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, OFFICE OF LICENSURE AND CERTIFICATION, Respondent. /
The Issue Should discipline be imposed by Petitioner against Respondent's license to practice as a licensed practical nurse (L.P.N.)?
Findings Of Fact Findings Established by Request for Admissions: Petitioner is the State of Florida department charged with regulating the practice of nursing pursuant to Section 20.43, Florida Statutes, Chapter 456, Florida Statutes, and Chapter 464, Florida Statutes. Respondent is and has been at all time material to the complaint a L.P.N. in the State of Florida, having been issued license number 9246217. Respondent's address of record is Post Office Box 99, High Springs, Florida 32655-0099. At all times material to this case, Respondent was employed as a L.P.N. by Suwannee Home Care and Medical Personnel, a staffing agency. At all times material to this case, Respondent was assigned to work as a L.P.N. at Alachua Nursing and Rehabilitation in Gainesville, Florida (Alachua). At all times material to this case, Alachua in Gainesville, was a licensed rehabilitation facility as defined in Section 400.021(13), Florida Statutes. At all times material to this case, Patient E.D. was admitted to Alachua (having been admitted) on June 20, 2003, with a diagnosis of status post CVA (stroke). On or about June 21, 2003, Respondent was assigned to care for E.D. on the 3 to 11 p.m. shift, and at the end of the shift, Respondent reported to the oncoming nurse that he assisted with the care of E.D. and that E.D. was okay and in no acute distress. Respondent's nurse's notes regarding the care he provided to patient E.D. do not mention whether he suctioned the tracheostomy care being provided; and do not contain any physical assessment of the patient. Respondent should have performed and documented tracheostomy care, including but not limited to frequency of suctioning, amount of color of sputum suctioned, cleaning of the tracheostomy device, oral hygiene, and method of communication with the patient. Respondent should have performed and documented a physical assessment of the patient that included respiratory rate and effort, color, pulse rate, and exertional level. Respondent should have monitored and followed up on patient E.D.'s vital signs. Additional Facts: Alice Bostick, is a Medical Malpractice Investigator for Petitioner. She was involved in the investigation leading to the drafting of the Administrative Complaint. As part of the process she attempted to notify Respondent of the allegations made against him. On July 15, 2003, she sent a letter of notification to Respondent at an address obtained from a printout of license information associated with Respondent. That address was 13134 North 22nd Street, Apartment 109, Tampa, Florida 33612. The information sent to Respondent was a Uniform Complaint Form and a Nursing Home Adverse Incident Report. The information sent to Respondent was returned as undeliverable and not subject to forwarding, absent a forwarding request made from Respondent to the U.S. Postal Service. Having failed to notify Respondent at the Tampa address, Ms. Bostick took advantage of access which the Petitioner has to the Florida Department of Highway Safety and Motor Vehicles records to locate Respondent's address maintained by the other state agency. The address provided by the other agency was Post Office Box 99, High Springs, Florida 32655-0099. This was the proper address. Utilizing the new address, the same information was dispatched a second time from Petitioner to Respondent. This time it was not returned as undelivered. Instead Respondent contacted Petitioner's office in person and by his remarks made it known that he received the communication from Petitioner concerning the investigation. At times relevant to this case Respondent worked for the Suwannee Valley Nursing Agency. That agency assigned him to work on a shift at Alachua, now the Manor of Gainesville. On June 21, 2003, Respondent worked the 3:00 p.m., to 11:00 p.m., shift at Alachua. One of the resident's in his care at that time was E.D. Resident E.D. was born on May 18, 1920. She had been released from the hospital on June 20, 2003, and transferred to Alachua. She was receiving oxygen. Physician's orders called for tracheostomy care (trach care) to be administered "Q 6 hours." She had a catheter which was last changed on the date of her release from the hospital. The order indicated that the catheter should be changed every Friday beyond that point. The resident was being fed by tube. As Respondent describes it, E.D. was among 30 patients in his care on the shift. Other residents included persons with G-tubes and insulin-dependent diabetics. Respondent was very busy during his shift helping the residents. Another staff member at the nursing home reminded the Respondent that he needed to suction E.D's trach. At some point in time Respondent and the other staff member suctioned the trach. When this function was performed during the shift is not established in the nursing home record pertaining to resident E.D., as that record was presented at the hearing. Therefore it was not shown an entry was made in the resident's record for care confirming the suctioning of the trach. The only reference to patient E.D. made in writing by Respondent presented at hearing, was from nursing notes related to resident E.D. In the nurse's note Respondent made an entry at the end of his shift as to vital signs for the resident, pulse rate 92, respiration rate 24 and a notation that Respondent "Assisted e-care no acute distress noted." Contrary to the nurse's note made by Respondent, resident E.D. was in distress as discovered by Gloria Brown, L.P.N., who came on shift to work from 11:00 p.m. June 21, 2003, until 7:00 a.m. June 22, 2003. Ms. Brown was familiar with the need to suction a trach and to make appropriate entry in the nursing notes in caring for a trach patient. Notes are also made in relation to oxygen saturation for that resident if a doctor's order calls for that entry. Ms. Brown properly expected the prior shift nurse to notify her concerning the resident's condition as to the number of liters of O2 provided the resident and if the resident had a fever. If the resident had a Foley catheter placed reference would be made to that circumstance. Generally if the resident was experiencing a problem, Ms. Brown would expect the outgoing nurse to mention that fact. On June 21, 2003, at 11:45 p.m., as Ms. Brown described in the nursing notes, "On first rounds observed resident E.D. with shallow breathing, skin color grayish, O2 on a 2 liter per trach mask. Attempt to suction, felt resistance. Sat. 24. O2 increased to three liters. Able to palpate pulse. 911 was called. Transported to Shands at UF via 911. Respiratory distress." Resident E.D. was transported to Shands Hospital at 12:00 midnight. When resident E.D. was transported to the hospital she was experiencing respiratory distress. She had a baseline level of consciousness in the alert range. Petitioner presented an expert to comment on Respondent's care rendered resident E.D. in the context of the allegations set forth in the Administrative Complaint. That expert was Meiko D. Mills, R.N., M.N.S., A.R.N.P. Ms. Mills is licensed to practice nursing in Florida. She has a business that involves the preparation for graduates of L.P.N. schools and R.N. schools to take the National Licensing Examination for those fields. Ms. Mills is familiar with trach care. She has had occasion to write nursing notes pertaining to trach care. She is generally familiar with the requirements for nursing notes in the patient record concerning any form of patient care rendered by the nurse practitioner. She was recognized in this case as an expert in the field of nursing related to patient care and L.P.N.s. In providing trach care, Ms. Mills refers to the need for a sterile environment and the part of the trach device that she refers to as a tube, requires a lot of cleaning because of secretions from the patient. She describes the fact that the trach device will form a crust. As a result the center portion of the device sometimes has to be taken out and soaked in sterile water to clean it. The suctioning process associated with trach care involves the use of a suctioning machine in which all the encrustations and saliva are removed. It is possible for a hard mucus plug to form if suctioning is not done appropriately, according to Ms. Mills. Ms. Mills expressed her opinion concerning Respondent's care provided resident E.D., as to a reasonable degree of certainty and whether Respondent met the minimal standards for acceptable and prevailing care and treatment of E.D. She described that care as lacking. Ms. Mills comments that the nursing note that was made by Respondent at the end of his shift was inadequate in describing the kind of care provided to the resident. In particular she describes the lack of reference to the trach issue and the oxygen saturation issue. She perceives that E.D. required considerable attention and that attention is not reflected in the nursing note. As a person responsible for providing care to E.D., who had a trach, Ms. Mills refers to the need for the Respondent to establish a baseline at the beginning of the shift. That baseline is constituted of vital signs and oxygen saturation, as well as a basic assessment of the resident. There was the need to compare the vital signs assessment to the shift before Respondent came on duty to gain an impression of any trends. The observations by Respondent should have been documented in nursing notes beginning with the baseline as to vital signs, oxygen saturation, reference to the condition of the trach, respiratory effort and so forth, and there was the need to go back and reassess over time. As Ms. Mills explains the resident's condition was reaching an abnormal state on the shift before. Without entries concerning the resident's condition, the assumption is made by Ms. Mills, that the patient care and in particular trach care was not performed by Respondent. Ms. Mills refers to a normal pulse rate as 80 to 100, but Ms. Mills cautions her students that a pulse rate close to 100 bears watching. A respiration rate approaching the highest normal demands attention. Anything above that creates concern. Higher readings tend to manifest themselves with shallower breathing by patient at more frequent intervals, given the body's attempt to compensate for a lack of oxygen. To address this condition a baseline oxygen saturation should be established at the beginning of a shift to help set a plan of care. A resident such as E.D. with a pulse rate of 97 and respiration rate of 24 is a person who needs to be closely monitored. There was no record by Respondent reflecting the establishment of monitoring to address these circumstances. The resident's progress should have been noted as to pulse rate and respiration rate several times during Respondent's shift, as Ms. Mills perceives it. Respondent should have also notified the oncoming nurse for the following shift that the patient was not doing well. This was not done. Overall, Ms. Mills feels that Respondent was deficient in his documentation concerning resident E.D. through the nursing notes. The general comment by Respondent that he assisted with care is not sufficient to establish that trach care was performed in Ms. Mills opinion. According to Ms. Mills, some of the vital signs reflected in the resident's record would create the possibility that they were in relation to a mucus plug in the trach. When the Resident E.D. was transported from the nursing home on June 21, 2003, at 11:30 the oxygen saturation at that time was 78 percent and her pulse was 159. In Ms. Mills opinion those values represented the fact that the resident was in distress. Ms. Mills believes that Respondent engaged in unprofessional conduct by acts of omission. Ms. Mills compared the nursing notes made by Respondent to those made by nurses on the prior two shifts at the nursing home. The prior notes were described as good notes talking about the care, while Ms. Mills did not get the same feeling about the notes made by Respondent. Ms. Mills compared the circumstances when Respondent came on shift when resident E.D. had a pulse of 100 and respiration rate of 20 and the change from the respiration of 20 to the respiration rate of 24 at the end of the shift, as indicating that the resident had shallow compensatory respiration because of a lack of oxygen. This leads Ms. Mills to the conclusion that the vital signs look worse and the person was significantly compromised over the day. Whether this circumstance was brought about by the formation of a plug due to a lack of trach care, Ms. Mills is not certain, but the vital signs indicate that the resident was sufficiently compromised to alert a health professional to that possibility. Earlier in the day the resident had a respiration rate of 28 and a pulse of 110. The change in those values over time up through the Respondent's shift did not indicate improvement in resident's condition in Ms. Mills' opinion. Ms. Mills' opinions that have been described are accepted. Based upon the facts found and Ms. Mills' expert opinion, Respondent failed to meet minimal standards of acceptable and prevailing nursing practice in the care provided resident E.D.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered finding Respondent in violation of those provisions of law set forth in Counts One through Three, calling for a written reprimand for those violations, imposing an administrative fine of $500.00, and placing Respondent on probation for a period of two years. DONE AND ENTERED this 24th day of May, 2005, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 2005. COPIES FURNISHED: Judith A. Law, Esquire J. Blake Hunter, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Harvey J. Price Post Office Box 99 High Springs, Florida 32655 Dan Coble, Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact At all times pertinent to the issues herein, Respondent, Thelma L. Jones, was licensed as a Licensed Practical Nurse in Florida, holding license number PN 0704471, and Petitioner was the agency responsible for licensing nurses in Florida. On June 2, 1986, Respondent was employed as a LPN by the Glades Health Care Center in Pahokee, Florida, as nurse on the 3-11 p.m. shift. She was assigned to the West Wing of the facility, and was assisted by at least two nursing assistants. Kathy Davis, another LPN, was assigned to the East Wing of the facility with her assistants, and in that location, though not officially identified as such, was the charge nurse for the entire facility. Though licensed as a 120 bed skilled nursing home, GHCC somewhat resembles an acute care facility, since the least seriously ill patient is normally more severely affected than those in most nursing homes. The patient census at that facility at the time was between 45-60 patients, total, in both wings. The facility is a one-story building with the two parallel nursing wings separated by a corridor. While possible, it would be extremely difficult for one nurse to service both wings. At approximately 3:50 p.m., on June 2, 1986, Respondent clocked in for work at the facility, approximately 50 minutes late. She immediately went to the West Wing, where she told Ms. Davis she was quitting and delivered to her the letter of resignation she had prepared that same day. Ms. Jones then returned to her duty station and attempted to contact the Director of Nursing, Mr. Gooley by phone, but was unable to do so. She then went out on the floor and spoke with some of the patients with whom she was most friendly, telling them she was leaving, but assuring them they would be taken care of. She returned to her station and again tried to contact Mr. Gooley by phone without success. After passing out some medications and making the required entries on some medical records, and after making a count of the narcotics as required, but without making an official record of it, she went back to Ms. Davis and told her she could not reach Mr. Gooley. Ms. Jones states that Ms. Davis replied, "Don't worry about it. I'll call him." After going back to the West Wing to collect her belongings, Ms. Jones then went to the front exit, where, over the television security monitor, she again spoke to Ms. Davis, who, for the second time, allegedly said she'd call Mr. Gooley. At this point, Ms. Jones saw a wandering resident trying to run away from the facility. She caught him and turned him over to a nursing assistant and for the third time, called Ms. Davis, who advised her she had reached Mr. Gooley and he was on his way in. Ms. Davis reportedly told Ms. Jones there was no reason she should stay. According to her time clock records, Ms. Jones punched out at approximately 5:40 p.m. She contends, however, she did not leave immediately, but stayed at least an hour after punching out. Mr. Gooley, on the other hand, indicated he arrived at the facility, pursuant to Ms. Davis' call, at approximately 5:50, and though he walked through the whole facility, failed to see Ms. Jones. It is found, therefore, that Ms. Jones left prior to the arrival of Mr. Gooley. After his walk through the facility, Mr. Gooley asked Ms. Davis where Respondent was, at which point, Ms. Davis handed him Respondent's letter of resignation and the key to the narcotics cart on the East Wing. Mr. Gooley immediately went to that wing, where he counted the narcotics with Ms. Davis present. He checked other records and determined that certain medications due to be dispensed at 5:00 p.m. by the Respondent, had apparently not been dispensed. Ms. Jones strongly contends that no patient due medicines failed to receive them prior to her departure and that she noted this in at least one record in each file. She admits, however, and it is so found, that she did not complete all records necessary prior to her departure. To ensure the East Wing was properly covered after Respondent's departure, Mr. Gooley remained on duty until relieved at the 11:00 p.m. shift change. Ms. Jones asserts her departure was justified and was not without authority. She had had some previous discussion with Mr. Gooley about the proposed change in working hours to require 12 hour, 8:00 a.m. to 8:00 p.m., shifts. Since her husband went to work at 4:00 a.m. and she had two children to care for, she advised him she could not work those hours. He insisted that she do so, however. On the day before she left, when she came to work, she again spoke with Mr. Gooley about the problem and he is reported to have advised her that her family was of no importance to him and she had to work the new hours. Mr. Gooley denies this. That same day, Respondent's husband told her he was being transferred to Leesburg and she could go up there with him to work. Whether or not the aforementioned colloquy took place is immaterial. Investigation by DPR reveals Ms. Jones did not leave Clewiston right away after she left her position with GHCC, but remained in town for several days. She returned to Clewiston after staying in Leesburg for only a week or so. When hired, each employee of GHCC is given a handbook which contains the facility's policy on resignation. This policy calls for two weeks notice to be given, in the case of nurses, to the Director of Nursing. Ms. Jones failed to give two weeks notice either orally or in writing. Respondent also contends that since Ms. Davis was the nurse in charge, she had authority to release Ms. Jones when Ms. Jones decided to quit. Mr. Gooley contends, and his contention is well taken, that though the East Wing nurse held the more senior position of the two, and had authority to answer the phone, call for fire support, and perform other routine tasks, her authority did not include receiving and approving letters of resignation. Ms. Jones also contends that by notifying Ms. Davis of her intent to leave at least an hour before delivering the letter of resignation, she gave ample notice. She asserts that because the State's staffing rules were not violated by her departure, and because Ms. Davis had her own aides as well as Respondent's after she left, no harm was done by her leaving. She had previously handled the whole facility by herself with only aides, even to the extent of passing medications. When she left, though it was during a shift, she was satisfied that everything that needed to be done was done and that Ms. Davis could handle anything that came up. Mr. Gooley, on the other hand, is of the opinion that her leaving without authority; her departure without dispensing medications; and her failure to sign off on the narcotics register, itself a violation, is not consistent with the fundamental standards of proper nursing practice in Florida. Though one nurse, plus aides, may meet the State staffing requirements, in his opinion, one nurse cannot, in light of the physical layout of this facility, handle all patients in both wings. To leave only one licensed nurse in charge of the whole facility could endanger the patients. For the past two years or so, Respondent has served as the nurse in charge of the medical facility at the Palm Beach County Jail, where she has been observed on a daily basis by Lieutenant William Arthur, under whose administrative supervision she falls. He is most pleased with her work and believes that due to her efforts, the facility has received clean inspection reports since she began working there. This is unusual for jail medical facilities. He has found her to be very conscientious in her work, and an employee who anticipates problems, solving them before they grow out of hand.
The Issue The issue posed for decision herein is whether or not the Respondent, based on conduct which will he set forth hereinafter in detail, engaged in acts and/conduct violative of Subsection 464.21(1)(d) and (g), Florida Statutes.
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the arguments of counsel, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. Michael Ray Hernicz, R.N., is a licensed registered nurse who holds license No. 0985972. Additionally, the Respondent has been certified as a Certified Registered Nurse Anesthetist (CRNA) and an Advanced Registered Nurse Practitioner (APNP). By its eight-count Administrative Complaint filed March 14, 1979, the Petitioner, Florida State Board of Nursing, seeks to place on probation, suspend or revoke the Respondent's license to practice nursing based on allegations that: During the week of January 15, 1979, Respondent caused to be advertised in the DeLand Sun News, a newspaper of general circulation the opening of an office in the 4 Towns Shopping Center, Orange City, Florida, for the general practice of medicine and used in connection with his name designation, "M.D." to imply or designate himself as a medical practitioner while not licensed, in violation of Florida Statutes Sec. 458.152(a), (b) and (c). On or about February 9, 1979, in Orange City, Florida, Respondent administered medical treatment to Steven H. Gaffney which action was not within the purview of the Nurse Practice Act, Florida Statutes Chapter 464. On or about February 9, 1979, Respondent practiced medicine as defined by Florida Statutes Sec. 458.13, in that he diagnosed, treated and prescribed medication for Steven Gaffney although not licensed to practice medicine in Florida and without the responsible supervisory control of a licensed physician, in violation of Chapter 453 and the Nurse Practices Act, Chapter 464, Florida Statutes. On or about February 16, 1979, Respondent was arrested by law enforcement officers of the Volusia County Narcotics Task Force at his office in Orange City, Florida, and was found to be in unlawful possession of controlled substances as set forth in Florida Statutes Chapter 893. On or about February, 1979, Respondent, for a fee, treated and prescribed medication for patient, Gladys M. Mossman, which treatments and medications were not prescribed or authorized by a person licensed to practice medicine in Florida. Respondent, for a fee, also treated and administered medications to cardiac patient, Nils Ljunberg, which treatment and medications were not prescribed or authorized by a person licensed in the State to prescribe medications or treatment, in violations of Florida Statutes Chapters 458 and 464. On numerous occasions from January 15, 1979, through February 9, 1979, Respondent unlawfully practiced medicine in violation of Chapter 458 by prescribing medications for various patients and treating said patients when he was not licensed to do so and while he was not acting under the responsible supervisory control of a licensed physician or without the purview of the Nurse Practices Act, Florida Statutes Chapter 464. In conclusory fashion, it is alleged that the Respondent is therefore guilty of engaging in the possession of controlled substances as set forth in Chapter 893, Florida Statutes, in violation of Florida Statutes 464.21(1)(d) and (g). The facts surrounding the allegations in the Administrative Complaint filed herein are not in dispute. What is in dispute, however, is the nature and scope of treatment authorized by nurse practitioners, such as Respondent, in view of the additional acts apparently approved by the Joint Advisory Committee on Advanced Nursing Practices. Section 464.021, Florida Statutes. Respecting the allegations that the Respondent caused to be advertised in the DeLand Sun News, an advertisement to the effect that he was opening an office for the general practice of medicine, Steve Blais, an advertising official of the Deland Sun News, appeared and testified that the day following the advertisement which appeared in the local paper, Respondent telephoned his office to alert the paper's advertising staff that a mistake had been made and that the initials "M.D." should not have followed the designation in his ad as he was not a licensed medical doctor in Florida. Mr. Steve Blais offered Respondent a letter of correction such that he could show to customers or anyone who needed documentation. Mr. Blais testified that the ad with the M.D. format ran on January 13, 14 and 17, and that the change was made on or about January 24 to delete the designation "M.D." from the ad. As stated, the facts surrounding the treatment aspect of the allegations are undisputed. However, Respondent contends that based on the supervisory arrangements and the written protocol that he had with Dr. Randal Whitney, M.D., and the working relationship that he had with Dr. Jeffrey Rudell, he was authorized to do the acts which he is here charged with as being violative of the Nurse Practice Act and Chapters 458 and 893, Florida Statutes. As originally conceived, the Respondent planned to practice with Dr. Jeffrey Rudell, who was then licensed in Alabama and who had applied for licensure by endorsement in Florida. This application by Dr. Rudell for licensure by endorsement was denied and Respondent entered into a supervisory relationship with Dr. Randal Whitney of Daytona Beach, Florida. Dr. Whitney appeared and testified that he had in fact entered into a supervisory relationship with Respondent and that he was consulted by Respondent on the treatment of several patients. Dr. Whitney's testimony is that of these patients about when Respondent consulted with him, he concurred with the method of treatment outlined and/or prescribed by Respondent. Respondent testified that he reached a decision that he could properly treat patients while working under the supervision and control of a licensed medical doctor or other specialized practitioner after considerable reflection on the latitude granted Advanced Registered Nurse Practitioners. In support of this decision, Respondent points to the fact that the Joint Committee, by its official Minutes, pointed out in Section 210-11.03, acts which were proper to be performed by an Advanced Registered Nurse Practitioner. Therein, the Board authorized various categories of functions that Advanced Registered Nurse Practitioners may perform at advanced and special levels which are recognized by the nursing profession and which are currently included in the curricula of advanced nursing education programs by the Board (Petitioner). Additionally, the Board authorized Advanced Registered Nurse Practitioners to perform such additional acts as was recognized by the Advisory Committee created by Florida Statutes Subsection 464.021(2)(a)(4) as proper to be performed by an Advanced Registered Nurse Practitioner. Petitioner requested the minutes from numerous meetings of the Board from 1977 through 1978 and noted that Board Member Charles D. MacIntosh during a meeting with the Board of Nursing advised that the Board of Medical Examiners had met on April 2, 1978, and ratified a new appendix D regarding Advanced Registered Nurse Practitioners. Dr. MacIntosh urged the Board that in light of the ratification by the Board of Medical Examiners, the Joint Advisory Committee should jointly meet to work out a proposed formulary of drugs that would he available to Advanced Registered Nurse Practitioners. The Board thanked Dr. MacIntosh for apprising them of the medical board's actions and Petitioner's counsel stated his opinion that, based upon the interpretations of subject Section 465.031, no conflict would result if the Joint Advisory Committee agreed that prescriptions and medications would be an additional act defined by Florida Statutes 464.021. Page 4 of the minutes indicate that with respect to Advanced Registered Nurse Practitioners, they are authorized to perform those additional acts which are performed within protocols which are jointly established by the Advanced Registered Nurse Practitioner and the M.D., D.O., or D.D.S., or the appropriate medical staff of a healthcare facility. Respondent entered into an arrangement with Dr. Whitney and explained to him the manner in which he expected to treat patients coming to his office and Dr. Whitney agreed to allow him the latitude he envisioned. (TR 259 through 261.) Accordingly, Respondent perceived his actions as falling within the purview of the regulation authorized by the joint committee. (TR 263 through 264.) Additionally, Respondent denied that he represented to anyone in this State that he was a licensed medical doctor. Respondent reiterated his position that he immediately notified the paper and asked them to change the designation to reflect that he was not a medical doctor. (Respondent's Exhibit 17.) On February 16, 1979, Respondent's office was searched by the law enforcement officers of Volusia County Narcotics Task Force in Orange City, Florida, and Respondent was given a list of drugs taken from his office by the law enforcement officers. (Petitioner's Exhibit 5.) No evidence was offered to establish that the Respondent has been found guilty of the unlawful possession of controlled substances as set forth and defined in Florida Statutes Chapter 893.
Conclusions In summation, the Respondent established that he, in addition to being a Registered Nurse, has been further certified as an Advanced Registered Nurse Anesthetist. Dr. Randal Whitney established that he entered a relationship with Respondent under the laws of the State of Florida to be his supervisory or sponsoring physician, to consult with him in the practice, and to call or talk personally with Respondent about problems or cases that might be a potential problem or possibly outside his field of expertise as to what to do about them. A similar arrangement was shown to exist between the Respondent and Dr. Paul Andrews, Additionally, Dr. Rene Almiron, M.D., testified that he agreed to read and interpret EKG's for Respondent. Subsection 464.021(2)(a), Florida Statutes, provides that performance of assessment, diagnosis, counselling and health teaching of the ill are within the definition of professional nursing. It thus appears that all of the acts and/or conduct engaged in by Respondent were permissible acts within the responsible supervisory control of Dr. Randal Whitney or were for medications within the approved formulary for Advanced Registered Nurse Practitioners. Respondent credibly testified that he consulted with Dr. Whitney, who supervised him in the treatment of all of his patients. (TR 261.) Finally, although it was alleged in Count IV of the Administrative Complaint that Respondent was found to be in the unlawful possession of controlled substances in violation of Florida Statutes Chapter 893, the Respondent denies this, and no evidence was offered by Petitioner to counter Respondent's assertion. The record herein reflects that while some of Respondent's acts and/or practices may have been questionable based on the conflicting directions embarked upon by the various joint committees, in view of the latitude granted to Advanced Registered Nurse Practitioners by the Nurse Practices Act and the established working relationship entered into between Respondent and Dr. Randal Whitney, the undersigned concludes that Respondent acted within his authority in his treatment of patients referred to herein. I shall so recommend.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That the Administrative Complaint filed herein be DISMISSED IN ITS ENTIRETY. RECOMMENDED this 4th day of December, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue The issues are whether Respondent violated Section 464.018(1)(h), Florida Statutes, and Rules 64B9-8.005(2) and 64B9-8.005(12), Florida Administrative Code, and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the agency charged with the regulatory and prosecutorial duties related to nursing practice in Florida. Respondent is a licensed practical nurse in Florida, holding license no. PN 0481631. From May 13, 1992, to April 11, 1997, she was employed by Southlake Nursing and Rehabilitation Center (Southlake). On April 9, 1997, Respondent worked as a nurse on the 3:00 p.m. to 11:00 p.m. shift on Southlake's A wing. T.C. was a patient of another nurse on that wing. Around 7:00 p.m., Respondent began administering medications to her patients. Melody Perez, the ward clerk, informed Respondent that T.C. needed assistance because he was in respiratory distress. T.C. was sitting in the hall, six to eight feet from Respondent. Respondent went over to T.C., checked to make sure that there was oxygen in his tank and that his nasal cannula was in place. Respondent saw no outward symptoms of T.C. being in acute respiratory distress such as rapid breathing or anxiety. Respondent told Ms. Perez that she could not help T.C. because he was not her patient. She told T.C. that his nurse, who was on break and had the keys to the other medication cart, would be back in a few minutes. Respondent thought that T.C. just wanted his medications. She did not perform a nursing assessment, as that term is commonly understood in the practice of nursing. She did not take T.C.'s vital signs, count his respirations, or listen to his chest. After telling him to wait for his nurse, she just walked away. On April 10, 1997, T.C. and another resident complained to Southlake's administrative staff about Respondent's failure to help T.C. Southlake initiated an investigation based on these complaints. Conchita Griffin, Southlake's Assistant Director of Nursing, conducted the investigation. As was the custom and procedure at Southlake, Ms. Griffin interviewed T.C., the second complaining resident, Ms. Perez, and two certified nursing assistants (CNAs) who were on duty during the incident. Ms. Griffin then compiled a written report of the incident and submitted it to Southlake's administration. Based on her investigation, and after considering Respondent's disciplinary history at Southlake, Ms. Griffin recommended that Southlake terminate Respondent. Southlake had written policies requiring a nurse to attend to any resident who needed help. The policies require a nurse to assess a patient complaining of respiratory distress by taking the patient's vital signs, listening to respirations and to the chest for congestion. According to the policies, a nurse should attend to any patient in distress, calling the patient's assigned nurse, facility management, or 911 if needed. There are no circumstances where the nurse should do nothing. On April 11, 1997, Respondent was called in and asked about her side of the incident. She admitted that she looked at T.C. and that he did not appear to be in distress. She acknowledged that she did nothing except tell T.C. that his nurse would be back soon. When informed that she was being terminated, Respondent refused to sign the disciplinary form. She was asked to leave the premises immediately. Sharon Wards-Brown, Southlake's nursing supervisor for the evening shift in question, accompanied Respondent to A wing to retrieve her belongings. When Respondent arrived on the A wing, she went into the medication room, picked up T.C.'s chart, removed some pages from the chart, and went to the fax machine just outside the medication room. Ms. Wards-Brown and Beverly Burstell, the nurse manager who was on the floor checking some charts, saw Respondent remove the pages from T.C.'s chart and go to the fax machine. Both of them told Respondent that she could not remove or copy anything from the resident's chart. Respondent told Ms. Wards-Brown and Ms. Burstell not to touch her. Each page of nurses' notes in the patients' charts have a front and back side. Respondent stood at the fax machine for only a couple of seconds, not long enough to copy both sides of one page of nurses' notes. She certainly did not have time to copy both sides of all of the pages that she had removed from T.C.'s chart. Respondent's testimony that she had time to copy some of the nurses' notes from T.C.'s chart is not persuasive. Her testimony that she left all of the original pages in the fax machine is not credible. After being prevented from copying all of the pages that she had removed from T.C.'s chart, Respondent ran into the bathroom. A few seconds later she came out of the bathroom with papers and her purse in her hand. Ms. Wards-Brown called Clara Corcoran, Southlake's administrator, and Ms. Griffen for assistance. All three of them followed Respondent out of the building, demanding that she return the documents that she had removed from T.C.'s chart. Respondent repeatedly told them not to touch her. Ms. Corcoran and Ms. Griffen followed Respondent into the parking lot. Respondent got in her car but Ms. Corcoran and Ms. Griffen blocked Respondent from closing the car door and continued to demand the return of the papers. Respondent finally drove forward over the cement bumper and the grass in order to leave with the papers. Meanwhile, Ms. Wards-Brown returned to the A wing to examine T.C.'s chart. Ms. Griffen also examined the chart within two to three minutes after Respondent left the floor. The chart was still open on the desk. Ms. Wards-Brown and Ms. Griffen discovered that T.C.'s nurses' notes for April 9, 1997, were missing. They knew the notes were missing because both of them had seen the notes in the chart the day before when they reviewed the chart as part of the investigation. Respondent's Exhibit 2 is a copy of the front and back of one page of T.C.'s nurses' notes. The last note is dated March 27, 1997. It is not plausible that T.C.'s chart had no nurses' notes from that time until after April 10, 1997. Even if Respondent did not remove any of T.C.'s original nurses' notes from the premises, she violated the acceptable standards of nursing care by copying the front and back of one page and removing the copies from the facility.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order fining Respondent $1,000 and suspending her license for one year, followed by two years of probation with appropriate conditions. DONE AND ENTERED this 10th day of October, 2000, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 2000. COPIES FURNISHED: Diane K. Kiesling, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Room 3231A Tallahassee, Florida 32308 Thomas A. Delegal, III, Esquire Randy Rogers, Esquire Delegal & Merritt, P.A. 424 East Monroe Street Jacksonville, Florida 32202-2837 Ruth R. Stiehl, Ph.D., R.N. Executive Director Board of Nursing Department of Health 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207-2714 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4042 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issue in the case is whether the allegations set forth in the Administrative Complaint filed against the Respondent are correct and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the responsibility for regulation and discipline of nursing practice within the State of Florida. The Respondent is a registered nurse holding Florida license number 2551692. On June 1, 2000, the Respondent was employed as a registered nurse at Harborside Healthcare Nursing Home. The Respondent was assigned to provide patient care including administration of medications to residents. L. M. was a resident of Harborside Healthcare. L. M. was a diabetic and required insulin injection as a part of her treatment for the diabetes. On June 1, 2000, the Respondent attempted to administer an insulin injection to L. M. Two Certified Nursing Assistants were present in L. M.'s room at the time of the injection. When the Respondent began the injection, L. M. "jumped" or "jerked," and the Respondent struck L. M.'s arm with the Respondent's closed fist. Both of the nursing assistants reported the incident to the facility's Director of Nursing. The Director of Nursing investigated the incident and discussed it with the Respondent, who initially admitted the striking although she later denied the event. The Respondent was immediately suspended from her employment and was subsequently terminated. Minimal standards of professional nursing practice prohibit the striking of a patient.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health, Board of Nursing, enter a Final Order imposing an administrative fine of $1,000, and suspending the Respondent's licensure until such time as the Respondent provides to the Board proof of her ability to practice nursing safely, after which the Respondent shall be placed on probation for a one-year period under such conditions as the Board deems appropriate. DONE AND ENTERED this 27th day of August, 2001, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 2001. COPIES FURNISHED: Beverly Cooper 2801 Belle Chase Circle Tampa, Florida 33634 Michael J. Kapperman, Esquire Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Ruth R. Stiehl, Ph.D., R.N., Executive Director Board of Nursing Department of Health 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207-2714
